Wilmington Trust, N.A. v. Serpa
At a foreclosure trial, the borrowers moved for involuntary dismissal under section 201.08(1)(b), Florida Statutes, because documentary stamp taxes had not been paid on the loan modification; the trial court denied a continuance, dismissed, and entered final judgment for the borrowers. The Third District affirmed the discretionary dismissal of the unstamped instrument but held the trial court erred in refusing to let the lender proceed on the original mortgage (on which taxes were undisputedly paid), that any dismissal should have been without prejudice, and that it abused its discretion on rehearing in refusing to reopen the evidence after the lender timely paid the taxes and filed proof.
Key facts
- Wilmington Trust, N.A., a lender, brought a foreclosure action against borrowers Serpa on a mortgage and a later loan modification.
- At trial, borrowers moved for involuntary dismissal under Florida Statutes section 201.08(1)(b) because documentary stamp taxes had not been paid on the loan modification; the trial court denied lender's request for a continuance, granted the dismissal, and entered final judgment for borrowers.
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Why it matters
Practical guidance for lenders and note-holders ambushed at trial by a section 201.08 documentary stamp tax objection: the dismissal must be without prejudice, the unstamped defect does not bar enforcement of portions… — full analysis with a trial
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